The majority in the Court of Appeal had no
difficulty with this issue. Stuart-Smith L.J. said that once it was concluded, as in his view it
had to be, that her condition was an organic one, this cast a flood of light upon and in support
of her evidence that she was working--that is to say, typing--during the critical periods for
prolonged stretches and for about 75 per cent. of her working day. This however was the
evidence of a witness whom the trial judge, who had had the opportunity of observing her in
the witness box, described as at time prone to exaggeration and some inconsistency. One of
her complaints had been that the pressure of work had been such that during most days she
had to type not only for long hours but also at high speed. Her normal typing speed was 60
words per minute, but she estimated that she was getting up to 80 words per minute on her
word processor. The judge heard evidence from other witnesses to the effect that a typist
could not exceed her natural optimum speed of about 60 words per minute on the word
processor for any sustained period, but only exceptionally and briefly to type the odd letter or
document. Stuart-Smith L.J. said that the judge was entitled to find that the respondent had
exaggerated in this respect, but that in his view that did not affect the position as on any
showing all the evidence showed that she was a fast typist and it was prolonged unbroken
spells of typing that were the trouble. Speed however was not the only matter about which
the judge held that the respondent was prone to exaggerate. This assessment of the
reliability of her evidence applied also to the question whether she was typing for prolonged
periods--a very loose expression, which in this case meant very little unless it was related to
the opportunities which arose naturally during the course of that work for breaks and other
rest periods.

What the judge found on this issue was that at
the relevant times in 1988 and 1989 the respondent did not as a general rule spend more
than three and three quarter hours per day--50 per cent. of her working time--on typing. He
accepted that from time to time during these periods, in order to type an urgent letter or
document, she might have typed for up to five hours per day--75 per cent. of her working
time, leaving aside her half an hour lunch period. But he also found that during these periods
she had ample scope to intersperse her typing with the remaining two and a half hours of
non-typing secretarial work. While there were peaks and troughs, and while the peaks may
have seemed excessive in the respondent's perception, she had the necessary discretion,
knowledge and experience to plan, organise, prioritise and negotiate the work and, if
necessary, to seek help to enable herself to cope reasonably with it. As there was no
evidence to show that she was not coping with her other non-secretarial work, the implication
was that the periods of typing were not being undertaken for prolonged periods without
interruption as she had claimed. The majority in the Court of Appeal were critical of these
findings. But much of their discussion of this issue seems to have been influenced by the
view which they had already formed that her condition was organic and that, as it was only in
circumstances of excessive typing that this condition would develop, her account of what she
was doing was supported by the nature of her condition as being accurate. They were also of
the view that the difference between the respondent's account of her work and what the judge
was prepared to accept about this was so great that he must have been saying that she was
being dishonest about it--something which in his assessment of her evidence he had
expressly negatived. There were some other details which they used to support their view
that the judge ought to have accepted the respondent's account of the time which she had
had to spend on her typing work. For example, Stuart-Smith L.J. said that she had said that
her job was done by two people after she ceased her employment with ICI.

The judge had however heard a good deal of
evidence on this issue. Some of this evidence gave some limited support to the respondent's
contention that she was from to time being overworked. But there was also much evidence,
other than her own assessment, to show that she was not working without any interruption for
prolonged periods on typing work. On the only occasion when she was asked to put a figure
on this, the respondent said that the time which she spent on typing during the critical periods
amounted to "possibly around 75 per cent." of her working time. Strictly
speaking, after allowing for her lunch break, the judge's finding that this could be expressed
as five hours of her working time was a slight underestimate. But the important point which
emerged clearly from the evidence of the other witnesses was that throughout her working
time, despite several complaints in her diary of overworking, the respondent was able to
satisfy all the other demands which were made on her in the performance of her other duties
as the secretary to three section managers. There were no complaints by those for whom
she was working of poor service or of inefficiency. The nature of those other duties was such
that she had to attend to them, as and when they arose, throughout her working day. They
provided frequent natural breaks from typing as she answered the telephone, left her desk to
speak to the managers elsewhere when they were not contactable by telephone, arranged
meetings for them, made diary entries and so on. Her own job description, which she had
prepared to show the work she was doing in 1986 to provide a secretarial service in her
department, impressed the judge because of the range and variety of her work. As for the
suggestion that her job was done by two people when she left her employment, the evidence
showed that nothing much could be made of this. The respondent accepted that there was
some readjustment of her work after she left ICI. One of the managers, Mr. Mason, took on
his own secretary and there was an increase in the work which had to be done for the other
managers.

Taking the evidence as a whole, the judge was
far better placed than the Court of Appeal was to assess to what extent, if at all, the
respondent was exaggerating and which of the other witnesses who tended to contradict her
were the more reliable. Here indeed were primary findings of fact on mundane matters, to
adopt Lord Bridge's description in Wilsher v. Essex Area Health Authority [1988] A.C.
1074, with which the Court of Appeal were not entitled to interfere. As for the comment that
the organic nature of the respondent's cramp cast a flood of light on her claim that she was
typing for prolonged periods, this proposition may equally well be run round the other way. It
may indeed be said that the judge's conclusions about the amount and nature of the
respondent's typing work, based on his assessment of the reliability of the evidence given by
the various witnesses, cast a great deal of light upon the question whether her condition had
been proved to have been an organic one.

Foreseeability and Negligence

The judge held that it was not reasonably
foreseeable, in the state of knowledge about the condition in 1988 and 1989, that the work
which the respondent was required to do as a secretary would be likely to cause her to
contract PDA4. As he put it, while it was technically foreseeable that a typist might suffer
from this condition, it was not reasonably foreseeable that this would happen to a secretary
who was typing to the extent which he found established by the evidence. He also held that
the respondent had not established the grounds on which she had claimed that the appellants
were negligent.

In her particulars of negligence the respondent
had alleged that the appellants were negligent because they had failed to warn her of the risk
of developing the condition from typing at a fast speed all day without respite apart from her
lunch break. At the trial the allegation was that they had failed to take steps to ensure that
she was given the same instruction, warnings and advice as were given to the typists in the
accounts department. The judge did not think that the appellants were under a duty to
prescribe for the respondent rest periods from her typing work, as she had ample non-typing
secretarial work to intersperse with it. He said that her work lent itself naturally to rotation
and interspersment. He pointed out that the respondent herself had rejected the notion that a
regime might be imposed upon her which, as a secretary and not a typist, she would have
regarded as unsuitable. This was, he said, a matter of common sense. He rejected the
allegation that a warning should have been given to her, on the grounds that the condition
was uncommon and, on the evidence, very rare in the case of typists, that it was not the
practice in the industry to give such a warning and that to do this, in the case of such a vague
condition which was not easily identifiable, might well be counterproductive.

The majority in the Court of Appeal held that it
was plainly reasonably foreseeable that typists might suffer from the condition if they typed
for long periods without break, and that the appellants should have given the same advice,
instructions and warning as they gave to the typists in the accounts department. It is clear
from their reasoning that they were proceeding on the basis that the amount and nature of
the respondent's typing work was not materially different from that done by the typists in that
department. As in their case, as they understood it, she also was required to type for long
periods without breaks or rest pauses. So she needed to be given the same advice and
instructions as had been given to them so that she would take breaks and rest periods, and
she should have been given a warning in order to ensure that she did what she was told.
Without that warning she would not have had the requisite knowledge that it was necessary
for her for her own health to take breaks from prolonged spells of typing work.

There are two flaws in this approach which in
my opinion wholly undermine the conclusion by the majority that in this case the appellants
were negligent. The first is their assumption that the respondent's evidence that she was
typing for prolonged periods with breaks and rest pauses was accurate and reliable. The
second is their failure to appreciate, and to take into account, the fact that the nature and
variety of her other work lent itself naturally to rotation and interspersment with her typing
work. This was not something that had to be laid down in advance. The breaks and rest
pauses from typing, on the judge's findings, occurred naturally throughout her working day
because of the variety of the duties which she had to perform as a secretary.

In effect, the majority rejected the judge's
assessment that the respondent's evidence was affected from time to time by exaggeration
and inconsistency and that it had to be tested carefully against the other evidence. They left
out of account his detailed analysis of the evidence of the other witnesses whom he accepted
as reliable. Had they accepted that analysis, they would have seen that her position was
quite different from that of the typists in the accounts department. The typists who worked
there had no other work to do other than typing. In their case steps had to be taken by way
of forward planning to ensure that they took breaks and rest pauses. In her case this was not
so. Even when she was spending up to 75 per cent. of her time on typing work she still had
25 per cent. of her time, in addition to her lunch break, to do her other work which was
spread naturally over her working day. Unlike the typists, she had both the experience and
responsibility to organise and plan her own work according to its requirements from day to
day. She did not need to be told what to do.

There was also a good deal of evidence to
show that the appellants had taken steps to enquire into, and to provide against, the
possibility that the operators of word processors might suffer from fatigue--in itself not
harmful to health--and possible injury due to poor posture and other undesirable working
practices. At a meeting held in Runcorn in May 1987 five possible health concerns had been
identified by them. These were back-ache, eyestrain/headache, effective lighting,
radiation/pregnancy and repetitive strain injury. In the case of repetitive strain injury it was
noted that this complaint was most often associated with a combination of poor hand position
and typing too fast. It was not suggested that the respondent had been adopting a poor hand
position, and her complaint of typing too fast was rejected by the judge on the evidence. It
was noted that the results of repetitive strain injury were pain, swelling and discomfort in the
fingers and wrist. The respondent's complaint when she went to see the works doctor, Dr.
Lamb, on 31 May 1989 was of pain in the back of her hands. He said that he was unable to
find any physical sign of the pain, and that he had not seen or heard of similar symptoms.

As for the giving of warnings, the respondent
said in her particulars of negligence that she should have been told of the risk of contracting
PDA4. The giving of warnings of the risk of disease or injury is a precaution which is familiar
in the field of litigation for personal injury. But in the case of conditions such as PDA4, which
are not easily identifiable and not well understood, great caution must be exercised as to the
content of any such warning and as to whether to give a warning at all is appropriate. To
impose a duty which may cause more harm than good would be undesirable. The law does
not compel employers to take steps which may bring about the condition which they wish to
prevent. Conditions which are associated with functional or psychogenic disorders present
particular difficulty. So the judge was right to pay careful attention to the advice of the
experts, and to the practice in the industry, as to precise terms of any warning that the
appellants might responsibly give to their employees about the risk of contracting PDA4.

Dr. Hay said that those who were prone to
anxiety might perceive that they had the symptoms of the disease, so a balance had to be
struck. On the other hand a balanced warning might simply do no more than accord with the
common sense precautions which everyone would take. Mr. Stanley said that it would be
disgraceful to give a warning which said that if you developed pain you may never work
again. The warning which he would have regarded as acceptable was simply to go and see
the works doctor if you develop unusual pain or discomfort. But that was not the kind of
warning which the respondent was looking for--she went her GP two days after she had noted
in her diary for the first time that she had pain in her hands, and a few days later she was
seen by the works doctor. The judge accepted the evidence of Mr. Pearce, the appellant's
ergonomist, that it was not the practice in industry in 1988 and 1989 to give a warning of any
kind about the risk of contracting PDA4, and that of Dr. Teasdale, the appellants' chief
medical officer, who said that no literature had ever come to his attention advocating such a
warning. His evidence was that the appellants were well aware that poor siting of equipment
could lead to eye strain and other disorders, and that steps had been taken to ensure suitable
work station design and siting and that appropriate information was given to visual display
operatives. But he would have regarded a warning that muscle fatigue might develop into
PDA4, a rare disease, to be counterproductive and, in the absence of advice by a suitable
expert body such as the Health and Safety Executive to the contrary, he did not consider it
necessary or proper to give such warnings. The judge also accepted Dr. Lamb's evidence
that a formal system of instruction, warning and advice was adopted and implemented for
typing staff in the accounts department as the working day was confined to accounts and
difficulties in changing postures could arise in their case. But such a system was not
considered necessary for secretaries as they carried out many non-typing duties in the
course of their working day.

Stuart-Smith L.J. said that he was not moved
by the suggestion that the giving of warnings might give rise to difficulty. In his opinion all
employers had to do was to give the instructions, advice and warning which the appellants
gave to those they considered to be at risk of doing excessive typing. It seems that the kind
of warning which he had in mind was that described by Dr. Lamb, which is not what the
respondent was asking for. But the judge had ample evidence before him to justify the
decision which he took that in the respondent's case this was unnecessary. I think that he
was right to regard her case as entirely different from that of the typists in the accounts
department. She was not required, as they were, to work continuously on a word processor,
and the appellants had no reason to anticipate that she was exposed to the same risk of
contracting PDA4 which, in any event, was minimal in their case.

The decisive point which emerges from this
part of the case is that the respondent's claim that her typing work was comparable with that
done by the typists in the accounts department was shown, by a careful analysis of the
evidence, to be exaggerated and unsupportable. The findings by the judge that the condition
was not reasonably foreseeable in her case and that the appellants were not negligent in the
respects alleged by her were, in my opinion, soundly based on the evidence. I do not think
that the Court of Appeal should have interfered with his decision that the appellants were not
liable to the respondent in damages. I would allow this appeal.